Fact check: How does Australia's plan to strip foreign fighters of citizenship compare to other nations?

The Government is in hot water over proposed changes to citizenship policy aimed at cracking down on foreign fighters.

The claim: Immigration Minister Peter Dutton says Australia is not "ahead of the pack" by proposing to strip Australian citizenship from dual nationals who are fighting with terrorist groups. He says countries like the UK, US, New Zealand, France and Canada have similar laws.

The verdict: Each these nations have distinct laws around foreign fighters and revoking citizenship, so there is no real pack. The UK has gone further than Australia, while Canada sits just behind. France, the US and New Zealand have not gone as far as Australia proposes, and each has different laws. Mr Dutton's claim is overstated.

The proposed changes give the Minister for Immigration and Border Protection, Peter Dutton, power to strip Australian citizenship from dual nationals who are fighting with terrorist groups.

But a more extreme measure that proposed giving power to the Minister to strip citizenship from sole Australian citizens has been put to community consultation after six ministers reportedly revolted against the policy in a cabinet meeting.

Defending the measures Mr Dutton has repeatedly claimed that under the new legislation "no person will be left stateless".

In support of the changes, he said: "Australia is not acting alone here, we are not ahead of the pack".

Mr Dutton then said "we have taken advice from our partners, we have looked at, in a very careful way, what our like-minded partners are doing and we've acted accordingly".

He said the Government had looked at the example of Australia's "five eye partners" - the United States, United Kingdom, Canada and New Zealand - who Australia cooperates with most closely on matters of national security.

In a press release Mr Dutton also said the changes would "modernise our laws and bring them closer to those of the UK, Canada, France, the United States and other countries".

ABC Fact Check takes a look at what changes to citizenship laws are being made internationally.

Australia's international obligations to its citizens

Article 15 of the declaration states that "everyone has a right to nationality".

The declaration, which was adopted by the UN General Assembly in 1948 and written in response to the atrocities that occurred during World War II, also says "no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality".

While the convention's main objective is to eradicate statelessness by 2024, it also says "nationality may be deprived if a person has conducted himself in a manner seriously prejudicial to the vital interests of the state".

The convention says that a person may be deprived of nationality if that person has "made a formal declaration, of allegiance to another state, or given definite evidence of his determination to repudiate his allegiance to the contracting state".

Since 1949 there have been provisions for the automatic loss of citizenship when a dual citizen serves in the armed forces of a country at war with Australia.

The proposed changes target dual nationals who join or support listed terrorist groups, or engage in terrorist acts alone, and "who engage in terrorist activities here in Australia or on foreign soil, including that of our friends and allies".

The proposed changes allow the immigration minister the sole power to strip dual nationals of citizenship.

The discussion paper says "there would be safeguards - including judicial review - to ensure there are appropriate checks and balances on their operation".

This means decisions by the immigration minister may be subject to judicial review.

Matthew Gibney, a professor of politics and forced migration from the University of Oxford,told Fact Check that "sometimes governments have the evidence but they don't want to use it in court lest it incriminates or endangers their own agents or informants".

The paper also says the Government is "considering enabling the minister to revoke Australian citizenship where there are reasonable grounds to believe the person is able to become a national of another country under their laws and would not be made stateless, as is the case in UK law".

The current Australian law enables the minister to revoke citizenship for new citizens who commit fraud in the migration process or naturalisation process itself.

Mr Dutton said on the ABC's 7.30 program that there have been 16 cases of citizenship being revoked for people who have "provided fraudulent information or been convicted of a serious offence essentially during the process of their application for citizenship" since the legislation, which was introduced in 1948, took effect in 1949.

"The only acceptable way for a rights respecting state to use denationalisation is to confine its use solely to dual nationals (ensuring against statelessness); to use it as a punishment (and thus to convict individuals in a court of law); to use it for a crime that represents a clear and unambiguous challenge to the constitutional order of the state; and to denationalise with the consent of the other state of citizenship (ensuring the individual is not just dumped on a state which has no real connection to the individual concerned)," Professor Gibney said in an email to Fact Check.

The United Kingdom

In July 2014 the British government amended the British Nationality Act 1981, making it possible forthe home secretary to deprive "naturalised citizens" of citizenship even if it it renders a person stateless while they are gaining another citizenship.

Before this, the British Nationality Act 1981 only gave the Home Secretary the power to deprive a person of their citizenship if it was deemed to be "conducive to the public good", and not "if doing so would make a person stateless".

The government's fact sheet on the changes says since 2006 there have been 27 people deprived of British citizenship by the home secretary because of "the conducive powers" rule.

The proposed legislation in Australia is set to mirror that of the UK, and would give power to the immigration minister to strip the citizenship of a dual national.

However the Abbott Government has not decided whether this will be extended to sole nationals who may be eligible to access citizenship elsewhere; this would include second generation Australians who could potentially gain access to citizenship in their parent's birth country.

At the time of the changes in the UK, the British immigration minister Mark Harper said:

"Citizenship is a privilege, not a right. These proposals will strengthen the home secretary's powers to ensure that very dangerous individuals can be excluded if it is in the public interest to do so."

The Library of the House of Commons says: "Some commentators have questioned how this controversial power will be applied, and whether it undermines the UK's international obligations."

One such critic is Professor Gibney, who told Fact Check: "The legal changes require only the home secretary's judgement that she has 'reasonable grounds' for believing a person is able to become a national of another country. This strikes me as too much power - and too vague a power - to vest with a home secretary."

Professor Gibney said the law "seems inconsistent with norms against creating statelessness".

"Even if there are reasonable grounds at the time of the decision to deprive, what if the government of the country concerned changed its laws or refused the citizenship application? The person would then be stateless, potentially permanently," he said.

However the British immigration minister, Mr Harper, argued at the time that the law "is consistent with our obligations under international law, as set out in the UN convention on the reduction of statelessness".

"There we retained the right to deprive naturalised persons of their British nationality and leave them stateless in certain circumstances including those set out above," he said.

Professor Gibney said he was also concerned that the changes apply only to naturalised UK nationals which he said is "highly discriminatory and, in my view, invidious".

The UK government also recently introduced the Counter Terrorism and Security Act 2015 which allows for "the creation of a temporary exclusion order to disrupt and control the return to the UK of a British citizen reasonably suspected of involvement in terrorist activity abroad".

Canada: Citizenship is a pledge of mutual responsibility

The Strengthening Canadian Citizenship Act, which received royal assent in June 2014, added new reasons why citizenship can be revoked in Canada and brought the first major changes to the citizenship act since 1977.

The legislation includes "new grounds to revoke Canadian citizenship from dual citizens who are convicted of terrorism, high treason, treason or spying offences, depending on the sentence".

The new legislation says Canadian citizenship can be revoked from dual citizens forjoining "an armed force or organised armed group engaged in armed conflict with Canada".

"The majority of revocation cases will be decided by the citizenship and immigration minister, or his delegate", says the Canadian government's backgrounder on the legislation.

This includes cases of convictions of terrorism, treason and spying offences.

However the revocation of citizenship for "membership in an armed force of organized group engaged in armed conflict with Canada" is decided in the Federal Court after it is referred by the Minister.

This differs from the Australian proposal which would give the immigration minister power to revoke the citizenship of dual nationals, subject to judicial review.

In Canada, once citizenship has been revoked by either the Federal Court or the minister, the individual is permanently barred from acquiring Canadian citizenship.

One criticism of the changes to Canadian law is that they recognise a conviction of terrorism made in a foreign court.

"This has proven controversial because standards of evidence differ widely across countries. As long as one is convicted in a court of law in the country in which one holds citizenship, this is a far better and safer way to go in my opinion," Professor Gibney said.

For example, Egyptian-Canadian journalist Mohamed Fahmy was convicted of supporting a terrorist group and sentenced to seven years in prison, in a widely-denounced trial held in Egypt.

At the time of his conviction he was a dual citizen, and the Canadian opposition party secured an agreement from the Canadian government that the minister would not strip his citizenship when the new laws came into effect in May 2015.

When talking about the changes to the law, Canada's citizenship and immigration minister, Chris Alexander, said:

"Citizenship is a pledge of mutual responsibility and a shared commitment to values rooted in our history. Dual citizens who are convicted of serious crimes such as terrorism and treason should not have the privilege of Canadian citizenship

These changes to the citizenship act were released in conjunction with new measures which increase the power of Canadian organisations to perform surveillance outside of Canada when investigating threats to national security.

United States citizenship strongly protected by constitution

The United States has not recently passed any laws that would penalise foreign fighters by revoking their citizenship.

There has been occasional discussion of the issue over the past few years, including a recent attempt to pass new legislation by Senator Ted Cruz, but the United States Constitution makes such change difficult.

Emily Berman from the University of Houston Law Centre told Fact Check that constitutional limits in the US meant legislation to revoke citizenship is unlikely to move forward.

"In general, citizenship is viewed as something that cannot be taken away. Guaranteed citizenship was one of the motivating forces behind the adoption of the fourteenth amendment, and it remains one of the fundamental rights protected by the constitution," Assistant Professor Berman said.

The current legislation in the United States does allow for a government to revoke citizenship if a citizen displays an "intent to relinquish their citizenship".

One such example where "intent to relinquish" may be applicable is in section 8 of the US Code, section 1481, which says that fighting in a foreign army is one act that can lead to loss of US citizenship.

Assistant Professor Berman said it is likely this law would also apply to fighting with a terrorist organisation, especially if it's on the state department's list of designated foreign terrorist organisations.

Assistant Professor Berman said there may be some room for argument about what constitutes intent, allowing for the revocation of citizenship under these circumstances to be challenged.

She told Fact Check that this is where disagreements could arise, as it is unclear "exactly what the government must show to establish a voluntary relinquishment".

"One can imagine a court very sympathetic to the government's side of things when it comes to, for example, ISIS fighters," Assistant Professor Berman said.

"The ultimate decision would be made by a court, if the citizen challenged the government's efforts to revoke citizenship. So the initial decision would be made by someone in the executive branch, but the individual would have the right to challenge that decision as unconstitutional in the federal courts," she said.

"The rules for naturalised and natural-born citizens are the same, except as it pertains to the naturalisation process itself, whereby if a naturalised citizen supplied fraudulent information as part of his/her application could then be stripped of citizenship," Assistant Professor Berman said.

New Zealand strengthens passport laws

The New Zealand Government has not passed any legislation similar to what Australia is proposing.

Andrew Geddis, from the Univerity of Otago, told Fact Check there has been no discussion of revoking the citizenship of foreign fighters.

"I think there's a recognition that just because New Zealanders may have involved themselves in terrorist acts doesn't stop them being New Zealanders. They are our problem that we have to deal with, rather than shuffling them off to someone else," he said.

Instead New Zealand passed new legislation in December 2014 which increased powers of surveillance and monitoring of suspected foreign fighters, and restricted and disrupted their travel over the short term.

New Zealand already had power to cancel a passport for 12 months where the person posed a danger to security, but the new bill extended this period up to three years, with a sunset clause expiring in April 2017.

A report by the Foreign Affairs, Defence and Trade Committee addresses concerns about statelessness by saying: "The denial of a passport does not render a person stateless as it does not affect their citizenship or nationality."

The report notes that if a person had their passport cancelled while outside of New Zealand the minister "must upon application issue a journey-specific emergency travel document to the person so they could re-enter New Zealand".

France's rules

In January 2015 France's top court, the French Constitutional Court, upheld the French government's decision to strip a French Moroccan dual national, Ahmed Ahnouni, of his French citizenship after being convicted of terrorism offences.

Mr Ahnouni became a citizen in 2003 and fell within the 15 year time frame.

According to the European University Institute, which is funded by the European parliament and British Academy, the court ruled this could be reconciled with the prohibition of discrimination but only if a person had held French citizenship for more than 15 years. Beyond this time, it found the removal of citizenship would violate the principle of equality.

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